Intelligence agents need whistleblower protections too

What we do not know is why Humphries, who apparently was not even involved in the investigation, felt like he needed to go outside the agency. Perhaps he truly believed his agency was mishandling or purposely stalling for political reasons what was a serious national security issue. Or maybe he was pursuing his own political agenda, trying to tip a tight election with scandalous news about one of the President’s top intelligence chiefs. Or maybe he was just a disgruntled employee, lashing out at the agency for excluding him from the investigation he originated as it widened in its scope and significance.

Whatever drove Humphries to blow the whistle, his conduct raises a serious question that goes well beyond the misadventures of General Petraeus. That is, whether members of the intelligence community should ever be whistleblowers. This is a particularly thorny issue these days with the ever-expanding incentives and protections that Congress has provided to encourage whistleblowers to step forward and help the government uncover fraud and abuse, even within its own ranks. In fact, only days after the Petraeus scandal broke, the Senate unanimously passed, as did the House in September, the Whistleblower Protection Enhancement Act, a bill that President Obama will surely sign into law. It provides the first major overhaul in almost two decades of whistleblower safeguards for federal government workers.

What the new law conspicuously excludes from its coverage, however, is any protections for employees of the national intelligence agencies. This would include employees at the Central Intelligence Agency (CIA), National Security Agency (NSA), Defense Intelligence Agency (DIA) and intelligence units in most other government agencies. The House, in a bi-partisan accord, specifically stripped these individuals out of the legislation. And the Senate did nothing to bring them back into the fold. When it comes to government whistleblowers and the important role they play in reporting and reigning in government misconduct, Congress has drawn a clear divide between intelligence agents and everyone else.

Humphries’ role in the Petraeus ordeal goes directly to why Congress got it wrong in excluding this segment of the federal workforce from the protections that will now be afforded to all other federal whistleblowers. To put it simply, the intelligence agencies are not immune from misbehavior. And the upshot of any such misconduct can be devastating. To be sure, there has been no finding that Petraeus did anything to threaten national security. Nor is there any suggestion that the FBI did anything wrong in its investigation. But think about the potential ramifications if the story had been different; if classified information had been loosely shared; if politics did have a hand in how this all played out. The Petraeus story vividly demonstrates that even within the highest ranks of the country’s intelligence and national security bodies, bad decisions are made, politics is ever-present and self-correction and oversight are not always at hand.

Which is why excluding intelligence agents from the new whistleblower reform is a bad idea. Even the architect of the new legislation, Senator Chuck Grassley (R-Iowa), thinks so as he made clear in his statements following the Senate’s passage of the bill. So does President Obama. In October, he issued a policy directive to directly counter this Congressional carve out. It orders the subject agencies (excluding the FBI, which has its own set of whistleblower regulations) to adopt some of the very same protections for intelligence agents that Congress wants to keep at bay. The problem is that the President’s move is more of a gesture than any real fix to this void in federal whistleblower protection. More importantly, it does nothing to change or even soften Congress’ clear pronouncement that intelligence agents should not be whistleblowers. That is a proclamation that will no doubt discourage potential whistleblowers in these agencies from stepping forward no matter what misconduct they may encounter.

No doubt, we live in a dangerous time. Precautions need to be taken with how classified information is handled. Decisions on national security need to be treated with the utmost sensitivity. But none of this weighs in favor of excluding intelligence agents from the country’s newly enlarged whistleblower scheme. If anything, it supports just the opposite approach. Only through some measure of real oversight and accountability can we be sure that our intelligence agencies are operating as they should be and in a way best suited to protect our national interests.

Congress was right to be cautious about this special category of whistleblowers. Perhaps these agencies (like the FBI) should be governed by their own set of whistleblower rules, narrowly prescribing the process that must be followed and the audience to which disclosures can be made. But rebuffing their participation altogether is misguided and short-sighted, reinforcing the black box in which these agencies too often operate.

One can only imagine how many lives might have been saved if some brave soul from the CIA or NSA had stepped forward to expose the faulty intelligence on Iraq’s phantom WMDs. That certainly will not be the last time that politics taints our foreign policy decisions. Nor will the Petraeus affair be the last time our national security is put in jeopardy by the indiscretions of a key decision maker. With the yawning gap in the new whistleblower legislation, we unfortunately are setting ourselves up for real trouble down the road, trouble that may not be remedied with a simple apology and resignation.

Schnell and Koury are lawyers in the New York office of Constantine Cannon, specializing in antitrust, consumer protection and whistleblower law.